STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, v. AHCA No. 2012005126 EDEM HOME CARE, INC., Respondent. ADMINISTRATIVE COMPLAINT The Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), files this Administrative Complaint against the’ Respondent, Edem Home Care, Inc. the Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (201 1), and alleges: | NATURE OF THE ACTION | This is an action to impose an administrative fine of $500.00 against an assisted living facility based upon a criminal background screening violation. PARTIES 1. The Agency is the licensing and regulatory authority that oversees assisted living facilities in Florida and enforces the applicable state statutes and rules governing such facilities. Ch. 408, Part II, Ch. 429, Part I, Fla. Stat. (2011); Ch. S8A-5, Fla. Admin. Code. The Agency may deny, revoke, and suspend any license issued to an assisted living facility and impose an administrative fine for a violation of the Health Care Licensing Procedures Act, the authorizing statutes or applicable rules. §§ 408.813, 408.815, 429.14, 429.19, Fla. Stat. (201 1). In addition to licensure denial, revocation or suspension, or any administrative fine imposed, the Agency may assess a survey fee against an assisted living facility. § 429.19(7), Fla. Stat. (2011). 2. The Respondent was issued a license by the Agency to operate an assisted living facility located at 4783 NW 195 ST, Opa Locka, Florida 33055 _, (“the Facility”), and was at all times material required to comply with the applicable statutes and rules governing assisted living facilities. Assisted living facilities are residential care facilities that provide housing, meals, personal care and supportive services to older persons and disabled adults who are unable to live independently. These facilities are intended to be a less costly alternative to the more restrictive, institutional settings for individuals who do not require 24-hour nursing supervision. Assisted living facilities are regulated in a manner so as to encourage dignity, individuality, and choice for residents, while providing them a reasonable assurance for their health, safety and welfare. Generally, assisted living facilities provide supervision, assistance with personal care and supportive services, as well as assistance with, or administration of, medications to residents who require such services. COUNTT Criminal Background Screening 3. Under Florida law, the Agency shall require level 2 background screening for personnel as required in Section 408.809(1)(e) pursuant to Chapter 435 and Section 408.809. § 429.174, Fla. Stat. (2011). 4. Under Florida law, level 2 background screening pursuant to Chapter 435 must be conducted through the Agency on each of the following persons, who are considered employees for the purposes of conducting screening under Chapter 435: (a) The licensee, if an individual, (b) The administrator or a similarly titled person who is responsible for the day-to-day operation of the provider. (c) The financial officer or similarly titled individual who is responsible for the financial operation of the licensee or provider. (d) Any person who is a controlling interest if the Agency has reason to believe that such person has been convicted of any offense prohibited by Section 435.04. For each controlling interest who has been convicted of any such offense, the licensee shall submit to the Agency a description and explanation of the conviction at the time of license application. (ec) Any person, as required by authorizing statutes, seeking employment with a licensee or provider who is expected to, or whose responsibilities may require him or her to, provide personal care or services directly to clients or have access to client funds, personal property, or living areas; and any person, as required by authorizing statutes, contracting with a licensee or provider whose responsibilities require him or her to provide personal care or personal services directly to clients. Evidence of contractor screening may be retained by the contractor’s employer or the licensee. § 408.809(1), Fla. Stat. (2011). 5. Under Florida law, every 5 years following his or her licensure, employment, or entry into a‘contract in a capacity that under subsection (1) would require level 2 background screening under Chapter 435, each such person must submit to level 2 background rescreening as a condition of retaining such license or continuing in such employment or contractual status. For any such rescreening, the Agency shall request the Department of Law Enforcement to forward the person’s fingerprints to the Federal Bureau of Investigation for a national criminal history record check. If the fingerprints of such a person are not retained by the Department of Law Enforcement under Section 943.05(2)(g), the person must file a complete set of fingerprints with the Agency and the Agency shall forward the fingerprints to the Department of Law Enforcement for state processing, and the Department of Law Enforcement shall forward the fingerprints to the Federal Bureau of Investigation for a national criminal history record check. The fingerprints may be retained by the Department of Law Enforcement under Section 943.05(2)(g). The cost of the state and national criminal history records checks required by level 2 screening may be borne by the licensee or the person fingerprinted. Proof of compliance with level 2 screening standards submitted within the previous 5 years to meet any provider or professional licensure requirements of the Agency, the Department of Health, the Agency for Persons with Disabilities, the Department of Children and Family Services, or the Department of Financial Services for an applicant for a certificate of authority or provisional certificate of authority to operate a continuing care retirement community under Chapter 651 satisfies the requirements of this section if the person subject to screening has not been unemployed for more than 90 days and such proof is accompanied, under penalty of perjury, by an affidavit of compliance with the provisions of Chapter 435 and this section using forms provided by the Agency. § 408.809(2), Fla. Stat. (2011). 6. Under Florida law, in addition to the offenses listed in Section 435.04, all persons required to undergo background screening pursuant to this part or authorizing statutes must not have an arrest awaiting final disposition for, must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, and must not have been adjudicated delinquent and the record not have been sealed or expunged for any of the offenses listed in Section 408.809(4). § 408.809(4), Fla. Stat. (2011). 7. Under Florida law, if an employer or Agency has reasonable cause to believe that grounds exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record that indicates noncompliance with the standards in this chapter. It is the responsibility of the affected employee to contest his or her disqualification or to request exemption from disqualification. The only basis for contesting the disqualification is proof of mistaken identity. § 435.06(1), Fla. Stat. (2011). 8. Under Florida law, an employer may not hire, select, or otherwise allow an employee to have contact with any vulnerable person that would place the employee in a role that requires background screening until the screening process is completed and demonstrates the absence of any grounds for the denial or termination of employment. If the screening process shows any grounds for the denial or termination of employment, the employer may not hire, select, or otherwise allow the employee to have contact with any vulnerable person that would place the employee in a role that requires background screening unless the employee is granted an exemption for the disqualification by the Agency as provided under Section 435.07. If an employer becomes aware that an employee has been arrested for a disqualifying offense, the employer must remove the employee from contact with any vulnerable person that places the employee in-a role that requires background screening until the arrest is resolved in a way that the employer determines that the employee is still eligible for employment under this chapter. The employer must terminate the employment of any of its personnel found to be in noncompliance with the minimum standards of this chapter or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to Section 435.07. § 435.06(2)(a)-(c), Fla. Stat. (2011). 9, Under Florida law, any employee who refuses to cooperate in such screening or refuses to timely submit the information necessary to complete the screening, including fingerprints if required, must be disqualified for employment in such position or, if employed, must be dismissed. § 435.06(3), Fla. Stat. (2011). 10. On or about March 26, 2012, the Agency conducted a monitor survey of the Respondent. 11. Based on observation, record review, and interview, the facility failed to provide evidence of FDLE Level II background screening for Staff #5. 12. Record review and request for staff #5's personnel records ,on 03/26/2012, revealed that no record was available in the facility for this staff. 13, On 03/26/2012 at about 10:10 a.m., Staff #3 stated that Staff #5 was let go after just three weeks of employment. 14. The Respondent’s actions or inactions constituted a violation of Sections 429.174 and 408.809, Florida Statutes (2011). Sanction 15. Under Florida Jaw, in addition to the requirements of part II of Chapter 408, the Agency may deny, revoke, and suspend any license issued under this part and impose an administrative fine in the manner provided in Chapter 120 against a licensee for a violation of any provision of Part I or Chapter 429, Part II of Chapter 408, or applicable rules, or for any of the following actions by a licensee, for the actions of any person subject to level 2 background screening under Section 408.809, Florida Statutes, or for the actions of any facility employee: . . . Failure to comply with the background screening standards of Chapter 429, Part I, Section 408.809(1), or Chapter 435, Florida Statutes. § 429.14(1)(f), Fla. Stat. (2011). 16. Under Florida law, the Agency may impose an administrative fine for a violation that is not designated as a class I, class II, class III, or class IV violation. Unless otherwise specified by law, the amount of the fine may not exceed $500 for each violation. Unclassified violations include: Violating any provision of this part, authorizing statutes, or applicable rules. § 408.813(3)(b), Fla. Stat. (2011). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of $500.00 against the Respondent. Respectfully Submitted, /s/ John E. Bradley John E. Bradley Assistant General Counsel Florida Bar No. 92277 Office of the General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building 3, MS3 Telephone: (850) 412-3658 Facsimile: (850) 921-0158 John.Bradley@ahca.myflorida.com NOTICE The Respondent is notified of the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. The Respondent has the right to hire and be represented: by an attorney in this matter at the Respondent’s cost. Specific options for administrative action are set out in the attached Election of Rights form. The Respondent is further notified if the Election of Rights form is not received by the Agency for Health Care Administration within twenty-one (21) days of the receipt of this Administrative Complaint, a final order will be entered. The Election of Rights form shall be made to the Agency for Health Care Administration and delivered to: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Building 3, Mail Stop 3, Tallahassee, FL 32308; Telephone (850) 412-3630. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Administrative Complaint and Election of Rights form were served to the below named persons/entities by the method designated on this 18th day of March 2013. /s/ John E, Bradley John E. Bradley Assistant General Counsel Florida Bar No. 92277 Office of the General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building 3, MS3 Telephone: (850) 412-3658 Facsimile: (850) 921-0158 John. Bradley@ahca.myflorida.com Arlene Mayo Davis Field Office Manager Agency for Health Care Administration (Electronic Mail) Yanelis Perez, Administrator Edem Home Care, Inc. 4783 NW 195 ST Opa Locka, Florida 33055 USS. Certified Mail ( 7011 1570 0000 3003 1759) Certified Fee Postmark Return Receipt Fao Here (Endorsement Required) Restricted Delivery Fea (Endorsement Required) Total Postage & Fees POLL 1570 O000 3003 1759

Docket for Case No: 13-001242